RCEP and Trans‐Pacific Intellectual Property Norms: Implications for India

• Date: 01 November 2019
• Published date: 01 November 2019
• DOI: http://doi.org/10.1111/jwip.12124
• Author: Seemantani Sharma

© 2019 The Authors The Journal of World Intellectual Property © 2019 John Wiley & Sons Ltd

J World Intellect Prop. 2019;22:313–348. wileyonlinelibrary.com/journal/jwip

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DOI: 10.1111/jwip.12124

ORIGINAL ARTICLE

RCEP and Trans‐Pacific Intellectual Property

Norms: Implications for India

Seemantani Sharma

Asia‐Pacific Broadcasting Union, 2nd Floor,

IPPTAR Building, Angkasapuri, 50614, Kuala

Lumpur, Malaysia

Correspondence

Seemantani Sharma, Asia‐Pacific

Broadcasting Union, 2nd Floor, IPPTAR

Building, Angkasapuri, 50614 Kuala Lumpur

(Malaysia).

Email: ssharma2@law.gwu.edu; seemantani@

abu.org.my

This paper examines the Regional Comprehensive Economic

Partnership agreement (RCEP) with a focus on the intellec-

tual property norms which it seeks to develop in the context

of India. It specifically analyses the key provisions of the

leaked IP chapter and its implications for India's IP regime.

The paper posits that India should not oppose the draft IP

chapter merely on grounds of its TRIPS‐plus nature in order

to adhere to the “minimum standards treaty”principle of the

TRIPS Agreement. The conclusion allays the concerns of the

civil society which has opposed the draft IP chapter merely

on grounds of its TRIPS‐plus nature.

KEYWORDS

free trade, Key Topics, free trade agreement, intellectual property

rights, Key Topics

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INTRODUCTION

The Regional Comprehensive Economic Partnership Agreement (RCEP) is a proposed mega‐regional free trade

agreement (FTA) between the ten member states of the Associatio n of Southeast Asian Nations (ASEAN) and six other

countries with which ASEAN has free trade agreements (referred to as ASEAN + 6 members). Termed as a viable

alternative to the Trans‐Pacific Partnership Agreement (now the Comprehensive Progressive Trans‐Pacific Partnership),

if accomplished the RCEP has the potential to pave the way for the creation of the largest free‐trade bloc in the world,

covering 45% of the world's population with a combined GDP of US $22 trillion and accounting for 40% of global trade.

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It was formally launched on November 26

th

, 2012 at the ASEAN Summit in Cambodia. Since the commencement of the

RCEP negotiations in 2013, India has maintained a positive outlook towards primarily because it is decisive for executing

its “ActEastPolicy”. Apart from regional and economic integration (which is the primary objective of Act East Policy),

India was initially keen to participate in the RCEP negotiations primarily due to three reasons. Firstly, India has business

interests in Southeast Asia which makes it vital for both the sides to enhance their ties by joining the RCEP. Secondly,

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[Correction added on 25 July 2019, after first online publication: An addenda was added to the original version of this article published on 17 May 2019]

there are non‐business reasons such as maritime security and the balance of regional powers. Thirdly, RCEP may be the

only opportunity for India to set binding standards with China on trade.

Despite this, lately India is reconsidering its decision of joining the RCEP due to an absence of clarity on the real

gains and losses to India in the long term. There is an overgrowing concern over giving market access to other

contracting states specifically China which according to experts may prove to be disastrous for the Indian economy.

However, until now there has been no official announcement or press release from the Government of India stating

its intention of not joining the RCEP. Given the strategic and economic benefits of RCEP for India, it is unlikely that

India will quit from the RCEP and specifically if Prime Minister Modi is re‐elected this year. As a matter of fact,

India actively participated in the 7th RCEP Intersessional Ministerial Meeting held on November 12

th

and

November 13

th

, 2018 in Singapore and at the 2

nd

RCEP Summit which was attended by none other than PM Modi

in Singapore on November 14

th

, 2018. At both the meetings, India reiterated its commitment to the early

conclusion of a meaningful regional trade pact in the form of RCEP.

The final text of RCEP is anticipated to cover a wide range of issues such as trade in goods, trade in services,

investment, economic and technical cooperation, intellectual property (IP), competition, dispute settlement and

other issues. Further, working or sub‐working groups have also been established to address rules of origin, customs

procedures and trade facilitation, legal and institutional issues, sanitary and phytosanitary measures, technical

regulations, electronic commerce, financial services, telecommunications and conformity to assessment procedures.

This paper does a comparative analysis of the proposed IP norms under RCEP with the IP norms under the TPP

in the context of India. It specifically examines the implications of the proposed IP norms on India's IP regime. Part

II of the paper briefly analyses RCEP's historical origins. Part III of the paper examines India's role and interest in

the RCEP negotiations since its commencement in 2013. Part IV of the paper analyses the draft IP chapter of RCEP

vis‐à‐vis the IP chapter of TPP. It delves into each of the six areas of intellectual property i.e. copyright, patents,

trademarks, trade secrets and unfair competition, genetic resources, traditional knowledge and folklore (GRTKF)

and geographical indications (GI). It also analyses the IP enforcement provisions of RCEP. Part V of the paper

concludes by arguing that India should be cautious before dismissing the draft IP chapter of RCEP due to its TRIPS‐

plus nature as it ignores the fact that TRIPS is only a “minimum standards treaty”which was never meant to update

any existing IP norms (Yu, 2017).

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HISTORICAL ORIGINS OF RCEP

Even though the RCEP negotiations commenced in November 2012 as a response to the Trans‐Pacific Economic

Partnership Agreement (TPP), it has a much longer history. It traces its origins to early attempts made by China and

Japan at various platforms such as the ASEAN + 3 (ASEAN, China, Japan and South Korea), ASEAN + 6 (ASEAN + 3,

Australia, India and New Zealand) and the Asia‐Pacific Economic Cooperation (APEC) Forum for facilitating

economic integration and cooperation in the Asia‐Pacific region.

In October 2001, China strongly supported the establishment of the East Asia Free Trade Area at the East Asian

Vision Group. The East Vision Group was formed in October 1999 by the Summit of ASEAN plus t hree in order to

facilitate East Asian cooperation. However, Japan and other Asian countries had serious reservations about this

proposal due to China's potential dominance in this pact. Five years later, Japan advocated for an alternative proposal

on the Comprehensive Economic Partnership in East Asia which would cover not only ASEAN +3 members but also the

three remaining ASEAN +6 members i.e. Australia, India and New Zealand. The inclusion of the ASEAN +6 memb ers

was made with a view to dilute China's dominance in the regional pact and to add a major mix of natural resource i.e.

Australia. Around the same time, even APEC members were seriously exploring regional integration and cooperation

efforts. In November 2006, APEC commissioned a study on the concept of a Free Trade Area of the Asia‐Pacific

(FTAAP) which ultimately led APEC leaders to pledge to create an agreement to realize this concept. Since then, the

APEC leaders have endorsed various declarations stating the need to formalize the FTAAP.

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In November 2011, ASEAN with the support of China and Japan proposed to merge the initiatives concerning

the East Asia Free Trade Area and the Comprehensive Economic Partnership in East Asia to form the RCEP. At the

19th ASEAN Summit which took place in 2011 in Bali, Indonesia, ASEAN leaders adopted the “Framework for

Regional Comprehensive Economic Partnership”. The RCEP negotiations finally commenced on November 2012 at

the 21st ASEAN Summit in Phnom Penh, Cambodia.

Since then, the RCEP negotiations have greatly accelerated to match the pace of the TPP negotiations even

though the joint declaration of the ASEAN +6 leaders did not specifically mention the TPP. The urgency of the

RCEP negotiations was particularly felt when two major ASEAN + 6 economies ‐China and India had deliberately

chosen not to join the TPP. Also excluded were other important ASEAN +6 members such as Indonesia, the

Philippines, South Korea and Thailand. While some of these countries were initially invited to the TPP negotiations

but eventually withdrew their participation, others were simply ignored or left out. There were economic and

political reasons for leaving out these countries from the TPP negotiations. For example, China was intentionally

left out from the TPP negotiations by countries which have been concerned about an aggressive China and sought

political security rather than an increase in trade. Similarly, several TPP countries did not view it solely as a trade

pact but as a means for facilitating regional security. Irrespective, the excluded countries have an option to join the

TPP but it naturally means that these countries will have no choice but to accept the final text as agreed upon by

the original negotiating parties. Such an outcome is highly unattractive to India (and to other major Asian countries

such as China) and therefore unsurprisingly it has turned its time, attention and energy towards RCEP, which gives

it an opportunity to set regional standards on its own terms and conditions.

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INDIA AND RCEP

The genesis of India's interest and involvement in RCEP could be traced to 1991 when the erstwhile Indian Prime

Minister P.V. Narasimha Rao launched the “Look East Policy”(LEP). The LEP was launched as an active economic

policy of engagement with East and Southeast Asia for implementing two objectives: (i) to facilitate trade links with

individual partners and (ii) to enable Indian workers to secure employment in East Asia and Southeast Asia. The

primary rationale of LEP is that India must find its destiny by connecting to Asian partners and that India's future

and economic interests are best served by greater integration with East and Southeast Asia.

The LEP has its roots in the pre‐independence era where in the mid‐1940s and 1950s, India made concerted

efforts to develop cooperation with East and Southeast Asia. The importance of Southeast Asia was realized by

India's first strategic analysts, the visionary K.M. Panikkar which was further reinforced by independent India's first

Prime Minister Jawaharlal Nehru. Since then, successive Indian Governments led by Mr. Atal Bihari Vajpayee and

Dr. Manmohan Singh have made attempts to implement the LEP in some form or the other.

India's engagement with Southeast Asia and East Asia under the LEP can be classified into two phases. The first

phase of the LEP (which lasted from 1991 onwards until the end of 2002) focused upon building closer economic

ties with the ASEAN member states. Consequently, India became a Sectoral Dialogue Partner of ASEAN in 1992, a

Full Dialogue Partner in 1995, a member of the ASEAN Regional Forum in July 1996 and finally a Summit Level

Partner in 2002. During this period, India also successfully concluded few bilateral agreements with ASEAN

countries such as the FTA with Thailand, bilateral defense agreement with Malaysia and economic cooperation

agreement with Indonesia and Singapore. Further, special attention was also given to Cambodia, Laos and Vietnam

under bilateral agreements while Myanmar was given special privileges from India's strategic and security

perspective. The second phase of the LEP (which commenced in 2003) was more comprehensive in its coverage as

it extended from Australia to East Asia while keeping ASEAN as its core. This phase was characterized by a shift in

focus from trade to wider partnerships in the field of economic relations, security cooperation, political

partnerships and physical connectivity through road and rail links.

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